Opinion NO. 2017-023

Pursuant to section 43-2-848 of the Code of Alabama, the probate court may award a reasonable fee to the sheriff for serving as personal representative of the decedent’s estate subject to the guidelines and restrictions therein.

Pursuant to section 26-2A-142(a) of the Code of Alabama, the probate court may award a reasonable fee to the sheriff for serving as conservator of a protected person’s estate.

The fees awarded to the sheriff for serving as a personal representative or conservator must be deposited in the county general fund.

Dear Mr. Porter:

This opinion of the Attorney General is issued in response to your request on behalf of the Jackson County Sheriff.

QUESTION 1

(1) Where an estate has sufficient funds to pay the administrator’s fee, can the sheriff be awarded a reasonable fee for his or her role as personal representative of the decedent’s estate pursuant to section 43-2-848 of the Code of Alabama where the sheriff is appointed to such position pursuant to section 43-2-172 of the Code of Alabama?

FACTS AND ANALYSIS

Where there is no appropriate personal representative or county administrator, the probate court may commit the administration of an estate to the sheriff. The administration of the estate attaches to the office of the sheriff and is secured by the official bond of the same. See Ala. Code § 43-2-172 (1991). There are no statutes that specifically provide for or restrict the compensation of the sheriff as personal representative. Section 43-2-848 of the Code of Alabama, however, generally provides for the compensation of the personal representative as follows:

(a) A personal representative is entitled to reasonable compensation for services as may appear to the court to be fair considering such factors that may include, but are not limited to, the novelty and difficulty of the administrative process, the skill requisite to perform the service, the likelihood that the acceptance of the particular employment will preclude other employment, the fee customarily charged in the locality for similar services, the amount involved and the results obtained, the requirements imposed by the circumstances and condition of the estate, the nature and length of the professional relationship with the decedent, the experience, reputation, diligence, and ability of the person performing the services, the liability, financial or otherwise, of the personal representative, or the risk and responsibility involved, which shall not exceed two and one-half percent of the value of all property received and under the possession and control of the personal representative and two and one-half percent of all disbursements.

(b) In addition the court may allow a reasonable compensation for extraordinary services performed for the estate.

(c) If a will provides for compensation, or no compensation, of the personal representative either directly or conditionally and there is no contract with the decedent regarding compensation, the personal representative may renounce the provisions and if no alternate or successor personal representative is willing to serve for the compensation provided in the will for the personal representative, the personal representative in the order of priority provided in the will shall be entitled to reasonable compensation. A personal representative also may renounce the right to all or any part of the compensation. A renunciation may be filed with the court.

(d) Nothing in this section shall be construed to limit the right of a decedent or all affected beneficiaries to agree in writing with the personal representative, as to the amount or the method of determining the personal representative’s compensation, which shall be binding on all parties if the appointment is accepted and the agreement is not unconscionable.

Ala. Code § 43-2-848 (Supp. 2015) (emphasis added).

This Office has considered a similar issue regarding the county administrator provided for in section 43-2-170 of the Code of Alabama. Opinion to Honorable Don Davis, Mobile County Probate Judge, dated June 8, 2005, A.G. No. 2005-144. That opinion determined that the compensation provisions in section 43-2-848 were applicable to the county administrator, despite the fact that the county administrator statutes are silent as to compensation. Consistent with the Davis opinion, the sheriff is entitled to reasonable compensation from the estate.

CONCLUSION

Pursuant to section 43-2-848 of the Code of Alabama, the probate court may award a reasonable fee to the sheriff for serving as personal representative of the decedent’s estate subject to the guidelines contained therein.

QUESTION

(2) Where the estate has sufficient funds to pay the conservator’s fee, can the sheriff be awarded a reasonable fee for his or her role as conservator pursuant to section 26-2A-142(a) of the Code of Alabama when the sheriff is appointed to such position pursuant to section 26-2A-138(a)(9) of the Code of Alabama?

FACTS AND ANALYSIS

Where there is no fit person to serve as a conservator, the probate court must appoint the county guardian or sheriff to serve as a conservator of the estate of a protected person. Serving as a conservator is a mandatory duty of the sheriff that may not be refused. See Ala. Code § 26-2A-138(a)(9) (2009). There are also no statutes that specifically provide for or restrict the compensation of the sheriff as conservator. Section 26-2A-142(a) of the Code of Alabama, however, generally provides for the compensation of the conservator as follows:

(a) If not otherwise reasonably compensated for services rendered, any court representative, attorney, physician, conservator, or special conservator appointed in a protective proceeding and any attorney whose services resulted in a protective order or in an order that was beneficial to a protected person’s estate is entitled to reasonable compensation from the estate. The conservator shall be allowed from the estate of the protective person all reasonable premiums paid on his or her bond and reimbursement of any court costs paid.

Ala. Code § 26-2A-142(a) (2009) (emphasis added).

This Office has considered a similar issue regarding the county conservator. Opinion to Honorable Wilbur Mitchell, Sheriff, Covington County, dated February 27, 1998, A.G. No. 98-00098. That opinion concluded that, because there was no specific statutory authority on compensation, the general statute in section 26-2A-142 was controlling. Consistent with the Mitchell opinion, the sheriff is entitled to reasonable compensation from the estate.

CONCLUSION

Pursuant to section 26-2A-142(a) of the Code of Alabama, the probate court may award a reasonable fee to the sheriff for serving as conservator of a protected person’s estate.

QUESTION

(3) If the first and second questions are answered in the affirmative, is the sheriff entitled to the fee as compensation, or must the fee be paid to the office of the sheriff to be expended as public funds?

FACTS AND ANALYSIS

Section 36-22-17 of the Code of Alabama governs the disposition of monies received by the sheriff. It provides as follows:

All fees, commissions, percentages, allowances, charges and court costs heretofore collectible for the use of the sheriff and his deputies, excluding the allowances and amounts received for feeding prisoners, which the various sheriffs of the various counties shall be entitled to keep and retain, except in those instances where the county commission directs such allowances and amounts to be paid into the general fund of the county by proper resolution passed by said county commission of said county, shall be collected and paid into the general fund of the county.

Ala. Code § 36-22-17 (2013) (emphasis added).

This Office has consistently stated that this section requires that monies collected by the sheriff must be paid into the county general fund. Opinions to Honorable Ana W. Franklin, Sheriff of Morgan County, dated August 2, 2012, A.G. No. 2012-074 (fees for registering as a sex offender); Honorable David Cofield, Randolph County Sheriff’s Office, dated June 14, 2011, A.G. No. 2011-070 (proceeds from gun sales by local act); Honorable Charles E. Mauney, Attorney for DeKalb County, dated December 8, 2010, A.G. No. 2011-020 (monies from a contract to house federal prisoners in the county jail); Honorable Lucius D. Amerson, Sheriff, Macon County, dated August 14, 1981, A.G. No. 81-00517 (fees for providing copies of public records). Fees for serving as a personal representative or conservator should be similarly deposited.

CONCLUSION

The fees awarded to the sheriff for serving as a personal representative or conservator must be deposited in the county general fund.

QUESTIONS

(4) If the fee is to be paid to the sheriff as compensation, does any law exist that would prevent the sheriff from using the fee for his or her personal use?

(5) If the fee is to be paid to the office of the sheriff, may it be expended for the expenses of the sheriff’s office without further restriction?

FACTS, ANALYSIS, AND CONCLUSION

Based on the response given to Question 3, your remaining questions are moot.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Kim Dobbs, Legal Division, Department of Human Resources.